5.  In March 2003, the journalist M. entered into a contract of employment with the C. company. The C. company was authorised under the relevant provisions of the Animal Welfare Act to perform animal experiments and to keep and breed animals (monkeys) for that purpose. During his working hours, M., using a hidden camera, produced 40 hours of film footage which documented the treatment of laboratory animals within the C. company’s premises.
6.  Having terminated his employment contract, M. prepared footage of around twenty minutes which he offered to a major German broadcasting company. On 9 December 2003 the broadcasting company aired a film of about nine minutes under the title “Animal experiments for profit”. The film showed a number of different scenes from within the C. company’s premises, accompanied by a critical commentary. The scenes primarily concerned the animals’ accommodation and the way they were treated by staff. During the month of December 2003, other broadcasting companies showed excerpts of the footage.
7.  Later on, a film of about twenty minutes with the title “Poisoning for profit” was produced, which used largely the same material that had already been aired on television. The introduction to the film claimed that the applicable law was systematically flouted in the laboratories of the C. company. The film further showed various experiments being carried out on monkeys. The second half particularly dealt with the way in which staff treated the animals, alleging that the animals were repeatedly treated in a cruel and harsh way. The film contained the accusation that the applicable legal regulations on the treatment of animals were disregarded and closed by the statement that medicines were not being made safer by poisoning monkeys. The applicant association made the film available for download on its website.
8.  The C. company filed requests for civil injunctions against the dissemination of the film footage against the applicant association, against the journalist M. and against other animal rights activists.
9.  On 20 January 2004 the Münster Regional Court (Landgericht) ordered the applicant association to desist from publicly showing the film footage taken by the journalist M. on the C. company’s premises or to make it otherwise available to third persons.
10.  On 25 February 2004, the Regional Court confirmed the injunction. It considered that the publication and dissemination of the footage interfered with the C. company’s personality rights, as the footage was produced without that company’s consent within its private premises. According to the Regional Court, the interference was unlawful because the C. company’s interest that the footage should not be published outweighed the applicant association’s interest in its publication.
11.  On 21 July 2004 the Hamm Court of Appeal (Oberlandesgericht) rejected the applicant association’s appeal. That court confirmed that the C. company had an injunction claim under section 1004 in conjunction with section 823 of the Civil Code and Article 2 § 1 of the Basic Law and section 186 of the Criminal Code (see relevant domestic law, below). The Court of Appeal considered that the C. company was not obliged to tolerate the publication and dissemination of the footage by the applicant association, because the applicant association had demonstrated that it did not respect the “rules of intellectual battle of ideas” (Regeln des geistigen Meinungskampfs). The court observed that it had allowed other persons, to which these circumstances did not apply, to continue the dissemination of the footage as long as this was not accompanied by unfounded or sensationalist reproaches.
12.  The Court of Appeal confirmed that the publication of the footage interfered with the C. company’s personality rights, which encompassed the right not to be spied upon by use of hidden cameras. Even though the footage was produced in an unlawful way, the court considered that the dissemination of such material was protected by the applicant association’s right to freedom of expression. In the instant case, this right was further enforced by the special reference to animal rights in Article 20 a of the Basic Law. There was no doubt that animal experiments were a controversial issue, which concerned the public in a serious way.
13.  Under the relevant case-law of the Federal Constitutional Court, it had thus to be determined whether the means employed had been proportionate to the aim pursued. The court considered, on the one hand, that the published material had been procured in an unlawful way and was to be used against the very person who had been betrayed. Such material could only be published if the importance of the information for the public clearly outweighed the disadvantages suffered by the injured party and by the legal order as a whole.
14.  Given that the information used had been procured in an unlawful way, it was decisive whether the person using this information was respecting the rules of intellectual battle of ideas. If a person did not abide by these rules, his right to freedom of expression had to cede. The Court of Appeal considered that numerous examples from the case-file demonstrated that this prerequisite was not met in the applicant association’s case.
15.  The court quoted a number of statements from the applicant association’s homepage, such as the following one:
“A[n animal’s] life will also be more important for us than a broken door, a destroyed laboratory or an incinerated meat transport.”
When third persons spilled artificial blood on a business associate of the C. company, the applicant association announced the publication of photographs and commented on the event as follows:
“The [applicant association] has nothing to do with spilling artificial blood on the monkey dealer, but solidarises with the animal rights activists who have performed this act.”
According to the Court of Appeal, these quotations demonstrated that the applicant association approved of the commission of criminal offences. With the following quotation, the applicant association incited third persons to commit criminal acts by offering its support:
“We carry out public relations and press work for so-called autonomous animal right activists who risk public prosecution in order to save animal life; furthermore, we show our solidarity by granting legal aid.”
16.  The Court of Appeal considered that the applicant association had not been aware of the fact that it might entice third parties to break into the C. company’s private sphere by interfering with the C. company’s personality rights through dissemination of unlawfully obtained information. On the contrary, it even enhanced that risk. On its website, the applicant association reproached the C. company of committing “murder and torture”. Even if such unfounded and sensationalist statements, considered on their own, might be covered by the right to freedom of expression, they indicated that the applicant association intended to use the footage for defaming the C. company’s reputation. The applicant association further supported interferences with the private sphere of the C. company’s staff members by reporting on gatherings in front of private homes – which the applicant association labelled as “home-demos”– and by disseminating flyers and posting stickers in the private neighbourhood of the C. company’s staff members. Even if the applicant association or its members might not have taken part personally in these actions, they supported such actions not only by reporting on their website, but, to all appearances, also in a financial way. On its homepage, the applicant association published the sentence:
“The action groups act in a mostly autonomous way and are financially supported by the association.”
17.  The C. company had furthermore established that the applicant association had high-jacked their website.
18.  The court considered that the applicant association, by employing these unfair means, attempted to force the C. company to close down its business activities, thereby even accepting the use of violence. This was confirmed by the applicant association’s declaration on its website:
“The [applicant association] does not request “better accommodation” or “better treatment” of animals which are killed in animal experiments, but demands the immediate abolition of all animal experiments.”
19.  It was not for the court to evaluate the aims pursued by the applicant association. The issues raised by the applicant association were part of a public debate and the applicant was certainly allowed publicly to express its opinion and to demand the abolition of animal experiments. However, when assessing the relation between the means employed and the aims pursued, it had also to be taken into account whether the person concerned by the interference with their personality rights had to tolerate the dissemination of the unlawfully acquired information by a specific person. Against the background laid out above, the C. company could not be expected to tolerate that an adversary such as the applicant association used film footage that had been produced in an unlawful way.
20.  The Court of Appeal further pointed out that the judgment exclusively concerned the use of the unlawfully produced footage. The applicant association remained fully entitled to express its criticism on animal experiments in other, even one-sided ways. The Court of Appeal finally observed that the civil injunction was subject to review in case of a change of the relevant circumstances. This served the applicant association’s interests, as it was up to them to respect the rules of intellectual battle of ideas.
21.  On 30 January 2009 the Federal Constitutional Court, relying on its Rules of Procedure, refused to admit the applicant association’s constitutional complaint without giving further reasons.
22.  By judgment of 21 July 2004 the Hamm Court of Appeal ordered the journalist M. and another animal rights activist to desist from publishing or disseminating the film “Poisoning for profit” as well as two further short versions of the film footage. Conversely, the Court of Appeal rejected the C. company’s request entirely to prohibit the publication of the footage secretly obtained within its premises. Basing its assessment on the opinions submitted by altogether four experts, the Court of Appeal considered that the way the animals were treated inside the laboratory justified criticism. There was, however, no evidence for cruelty to animals in the legal sense of the word. The Court of Appeal further observed that the film “Poisoning for profit”, through its accompanying commentary and through the way specific scenes were cut together, conveyed the core message that the C. company systematically contravened the law. Similar principles applied to two further short versions already broadcast. The Court of Appeal concluded that the C. company’s request was to be granted insofar as it concerned this specific footage. However, the defendant was, in principle, not prevented from using the footage in other ways, as long as he did not convey any misleading message.
23.  Following the broadcast of 9 December 2003, a British animal rights organisation and several others lodged criminal complaints against the C. company for contravention against the Animal Protection Act.
24.  On 19 February 2004 the Münster Public Prosecutor informed the animal rights organisation that criminal investigations had been discontinued for lack of a sufficient suspicion. Basing its assessment on an examination of the long version of the film footage, on the statements made by the journalist M. and by the C. company during the criminal investigations, and on four expert opinions, the Public Prosecutor considered that it could not be established that the management or animal keepers had contravened the Animal Protection Act.
25.  The Public Prosecutor noted, at the outset, that the C. company possessed the necessary authorisation for keeping and breeding animals and for performing animal experiments. It followed that the C. company was allowed to perform interventions and treatments for experimental purposes even if this should cause pain or suffering. It had not been established that cruelty to animals had been exerted or tolerated by the C. company. The fact that some scenes could be considered as tasteless and lacking respect towards the animals was not relevant in this context.
26.  The Public Prosecutor transferred the case-file to the administration for further examination.
27.  On 17 December 2003 the Municipality of Münster ordered the C. company to record the treatment of the monkeys on video and to have the film material assessed on a daily basis by the company’s animal welfare officer. On 16 January 2004 the Münster Administrative Court restored the suspensive effect of the objection lodged by the C. company against this order since no breach of the Animal Welfare Act had been proven. The objection proceedings were discontinued in November 2006.
28.  In 2004, the C. company requested the issue of civil injunctions ordering two Swiss animal right associations and two internet providers to desist from further disseminating footage taken by the journalist M. inside its premises. On 21 May 2004 the Münchwilen District Court (Bezirksgericht) rejected the request on the grounds that there were serious doubts whether the practices depicted on the footage were in line with the Swiss law on animal protection and that the associations’ right to freedom of expression had to prevail.